Tomson v. Ward

1 N.H. 9

• Court: Superior Court of New Hampshire
• Decided: September 15, 1816
• Status: Published

Opinion

Bell, J.

*

The case affords no evidence of fraud in relation to the claims of either party. They are, therefore, to be considered as equally innocent purchasers. The attachment of Hutchins was prior to the recording of the deed to Tom-son, and consequently vested in Hutchins whatever title Sanborn had at the time of the attachment. The question therefore to be decided is, whether Sanborn was the owner of the premises at the time of the attachment.

The agreement between Sanborn and Osgood, after the loss of Sanborn’s deed, that the title of the land should revest in Osgood, to be conveyed to Sanborn upon the payment of a debt, presents the question in the same point of view as if the deed had been actually cancelled by the parties, with the intention that the title should thereby be re-vested in Osgood.

Does the act of cancelling an unrecorde’d deed, by agreement of the parties, with intent thereby to revest the title in the grantor at a time when no other persons have acquired rights in the land under the conveyance to the grantee, operate as a re-conveyance of the title by the laws of New-Hampshire ?

A deed of lands, duly executed and delivered, though it be not recorded, vests the title in the grantee as against the grantor and his heirs, and all subsequent claimants under the grantor, having prior notice of such deed. By the statute of February 10th, A. D. 1791, entitled “An act declaring the mode of conveyance by deed,” sect. 1, it is enacted, that no title to real estate greater than an estate at will, shall be passed but by some instrument in writing.

If this, therefore, were a new question, and the language of the statute of 1791 were to receive what appears to be it§ most natural construction, the act of cancelling an unrecorded deed could not amount to a re-conveyance. This is not, however, a new question. The statute of February, A. IX 1791, is, as it respects this question, substantially a copy of a statute of the province of New-Hampshire, passed A. D. 1719 ;(1) and long before the Revolution the courts of law of the province had given a construction to the words of that statute in relation to the question under consideration. They had decided, that, as between the parties to the unrecorded deed, the fee did not so pass, but that a cancelling of the deed by agreement of the parties destroyed what they seem to have considered an inchoate title in the grantee, leaving the grantor in possession of his'former title.

J. P. Hale, for the demandant. S. Moody, for the tenant.

That this was the settled construction of the statute before the Revolution, is as satisfactorily ascertained as any question of this nature can be. Tradition, as well as the recollection of the oldest members of the profession of the law in . this state, agree that such was the ancient and uniform construction of the statute.

It is an established legal maxim, that when the legislature adopt or re-enact a statute, the previous construction of the statute, as settled by the courts of law, is adopted; and the same construction has accordingly been uniformly put by our courts upon the statute of 1791.

Many titles to real estate depend on the construction now given to this statute, and it would be of great public inconvenience to unsettle this question.

Whatever might have been the opinion of the court, if this question were now for the first time to be decided on'the words of the statute of 1791, without a reference to the former established construction of the statute,(2) they believe •that they are justified, on sound principles of law and public policy, in adhering to what they believe has been the uniform construction of this law in this state for nearly a century past.

The opinion of the court is, that the evidence is in law sufficient to sustain the verdict; and that, according to the agreement of the parties, the tenants have leave to move for judgment on the verdict, as upon a mortgage.

Richardson, C. J,, having been of counsel, did not sit in the cause.

2 John. 84, Jackson vs. Chase. 6 Mass. Rep. 24, Marshall vs. Fisk. 10 Mass. Rep. 403, Comm. vs. Dudley.